“In my opinion, the current process in British Columbia is broken and is not meeting the needs of citizens or employers,” she concluded in a blistering 44-page report. She called it “one of the most important investigation reports, if not the most important” she has written.

While a new law is being drafted, Denham said the province and municipal police boards should issue directions to police to correct a situation that affects thousands of British Columbians.

Denham’s main concern is police providing prospective employers with information that police have collected but that has not led to a criminal conviction or, often, even charges being laid. This may include evidence of mental illness such as a suicide attempt, unfounded allegations against someone by a member of the public and the existence of police investigations that did not lead to charges.

“There is no evidence that the non-conviction information in these record checks predicts a risk of future criminal behaviour, improves the safety of citizens, or results in better hiring decisions,” Denham said.

Such information, she said, “is untested and unproven in court.”

“These checks also raise serious concerns under the Human Rights Code about an individual’s right to be free from discrimination from criminal convictions unrelated to employment as well as numerous Charter issues, including the presumption of innocence which is fundamental to a democratic society.”

“With the exception of those working with children and vulnerable adults, non-conviction information should be off-limits in an employment-related record check.”

She said legislation is needed to ensure an appropriate balance between an individual’s right to privacy and an employer’s right to relevant background information on potential employees.

Police say the individual requesting such a check for a prospective employer provides consent for the release of non-conviction information. But the privacy commissioner called that a fiction, as an individual who refuses to sign the consent is unlikely to be considered for a job. And she said it means police are routinely handing employers information that an employers cannot legally ask of a job candidate in B.C.

“The current state of affairs in British Columbia is at the extreme end of Canadian and international practices with respect to the lack of sensitivity toward the privacy rights of citizens,” Denham noted.

“As a result, citizens are being wrongly denied employment opportunities and are being stigmatized and discriminated against on the basis of unproven and irrelevant non-conviction records as well as irrelevant conviction records.”

Denham cited several examples of the “significant, real world impact” on people. One person she cited, named Shannon, had never been charged or convicted of an offence, but lost a job because a false accusation of shoplifting was disclosed to a potential employer. Another, Greg, elected not to volunteer for a child’s sports team rather than reveal the police check that contained information that he had called a suicide hotline.

“In disclosing the results of a police information check in this way, police agencies are taking personal information that was originally collected for law enforcement and change its use to employment-related decisions for private or public sector employers,” the privacy commissioner explained.

She said such information has not been vetted through the safeguards provided by the criminal justice system nor is the individual not given a way to challenge the accuracy of the information.

It is not sufficient, she said, to expect individuals like Shannon to try to persuade a potential employer that the allegation was invalid and that she had been cleared. Many employers will simply not listen nor will they take what they perceive as a risk, especially if they have other qualified candidates.

Pre-employment police checks are different from the Criminal Records Review Act process that the province set up in 1996 for individuals seeking to work with children or vulnerable adults. Under that process, which Denham called “balanced,” a provincial agency supervises and conducts the checks, determines the relevance of the information and decides whether an individual is suitable for hiring.

Since that system of checks was introduced, however, the RCMP, the 11 B.C. municipal forces and the Stl’atl’imx Tribal Police Service have offered employment-related records checks that an increasing number of employers and volunteer organizations request. People wanting to work or volunteer in positions not nearly as sensitive as those covered by the criminal review now find themselves subjected to far more invasive vetting.

In 2013, Denham says, Vancouver police did 18,250 checks and released information on 797. “Only 224 of the 797 checks involved criminal convictions,” she noted. “That is to say 72 per cent involved the release of non-conviction records only. This is clearly a significant number. Mental health information was included in six per cent of the 797 checks where information was released.”

Not surprisingly, the commissioner expressed grave concern over the inclusion of mental health information.

“There is no reason why this information should be disclosed to employers, who would have no right to otherwise ask about this information in the hiring process,” she complained.

Denham is suggesting the province widen the scope of the provincial agency that does the criminal review checks. She also wants police to adopt a model that allows individuals to request release of only relevant conviction information when the job they are seeking is not with children or vulnerable adults.

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